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Can my boss legally cut my pay?

(MoneyWatch) Dear Evil HR Lady,

I wanted to check to see if what my employer just did is legal. I'm a salaried exempt employee that was just made part time due to me starting work later. I still put in my 8 hours and get my work done.

I just came back from leave due to the birth of my premature daughter. Upon my return I let my supervisor that it will take some time to get her on a schedule, so I will be late for awhile. I was told thanks for letting them know. Now I'm told, without warning, that I will be part time with my salary cut by 25 percent. They initially tried to make this effective retro until I had to tell them they can't do that.

There are several other employees that are late as well with no change to them. I thought salaried employees were paid for a job and not necessarily their hours worked. Can you please confirm if you think I have a case?

I think your boss is a jerk. But, I also have to question how long you've been out with a premature baby, and since I don't know if you're mom or dad, I don't know how much time you took off due to the birth and recovery. Nor, do I know if this was 36-weeker who came home at 3 days, or a 24-weeker who was in the hospital for 5 months and is just now home.

Why does any of this matter? Because as much as we'd like to think that other people have nothing but compassion for our trials, the reality is, while you were out, people were covering for you. What impact has your absence had on your coworkers and your boss? Sometimes people can get bitter. Even if they logically know they shouldn't, it can just happen. Good people try to suppress their feelings of bitterness, but many times it pops out, unexpectedly.

So, if you've been in and out for the past 5 months, you've exhausted your FMLA leave, and you've left a trail of unfinished projects in your wake, your boss's response to your announcement that you need to come in late can be seen as a logical response. However, if the baby is two weeks old, you took 3 days off, and all your workload is up to date, your boss is off his rocker.

But, let's talk legalities. A reminder, I'm not a lawyer and I don't play one on the Internet. Furthermore, tons of stuff is governed by state laws, so your state may have things that cover this. Assuming that you haven't exhausted your 12 weeks of FMLA you might say, "Hey, coming in an hour late can count as intermittent FMLA!" Well, companies aren't required to grant that for baby bonding time. They can be required to for a sick child, but if your baby is now healthy, that doesn't count.

So, it comes down to, can they cut an exempt employee's pay for coming in late? Well, yes and no. One of the hallmarks of being a salaried exempt employee is that an employer can't dock your pay. They can yell at you, discipline you and even fire you for coming in late, but they can't dock your paycheck. However, there is a big difference between docking a paycheck and cutting your pay. It sounds like they are doing the latter.

You were absolutely correct that they can't do that retroactively, but they can do it going forward. Just as you can receive a raise, you can have a pay cut. But it needs to be "permanent" in that sense that it's not as a punishment for working fewer hours this week. So, it is perfectly legal to do it going forward.

The only legal question over this is your assertion that other people come in late and don't have their pay cut. Treating employees differently is legal as long as they aren't doing it for illegal reasons. That is, I can require Bob to in at 8:00 and allow Susan to come in whenever she feels like as long as I am doing that because I like Susan more, or because Susan is a high performer, or because Bob picks his nose in public. But, if I'm doing it because Susan is female and Bob is male or because Susan is black and Bob is white, then that's illegal. If  they are doing it in retaliation for taking FMLA leave, then that is illegal and you do have a case.

Now, it's illegal to discriminate against someone on the basis of pregnancy, but not because they have children, as long as you don't do it based on gender stereotyping. So, if you say, "You're part time now," to only female employees with children who need to come in late, it's illegal. But if you say it to both male and female employees with children, then you're not guilty of gender discrimination.

So, where does this leave you? Well, with a boss that is being a jerk, but also with you being a bit naive. Many, many babies need time to adjust to schedules and some never, ever get there, no matter how hard the parents try. It's kind of unreasonable for you to announce that from now until some undetermined time in the future, you will come in late. Most managers would bristle at that. You should have asked permission rather than announced.

And while you're correct that exempt employees should be paid by the job, and not by the hour, it's perfectly legal for employers to require their exempt employees to work specific hours. So, what your boss could have said is, "No. Your hours are 8:30 to 5:00, Monday to Friday. End of story." Instead he said, "Fine, you want to come in late every day for the forseeable future? You're part time."

My suggestion? Go to your boss and apologize for assuming you could make this decision on your own and ask what is reasonable for him. And then you have to decide if the extra hour home with the baby is worth the damage to your career. You may have a legal case, but you'd have to consult a lawyer. And since this is supposed to be a temporary change, you're probably better off working this out with your boss than you are calling a lawyer.

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